Eleanor Curtiss v. Bruce Ellery

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 28, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP1088 Cir. Ct. No. 2017CV1846

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

ELEANOR CURTISS,

PLAINTIFF-APPELLANT,

ALLMERICA FINANCIAL BENEFIT INSURANCE COMPANY,

SUBROGATED PLAINTIFF,

THE CENTERS FOR MEDICARE AND MEDICAID SERVICES,

INVOLUNTARY PLAINTIFF-APPELLANT,

V.

BRUCE ELLERY, MIDDLETON-CROSS PLAINS AREA SCHOOL DISTRICT,
COMMUNITY INSURANCE CORPORATION, ALLMERICA FINANCIAL
BENEFIT INSURANCE COMPANY A/K/A HANOVER INSURANCE GROUP
AND MASSACHUSETTS BAY INSURANCE COMPANY,

DEFENDANTS-RESPONDENTS,

TOWN OF VERONA AND RURAL MUTUAL INSURANCE COMPANY,

DEFENDANTS.
No. 2019AP1088

APPEAL from orders of the circuit court for Dane County:
JUAN B. COLAS, Judge. Reversed and cause remanded for further proceedings.

Before Fitzpatrick, P.J., Kloppenburg and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Eleanor Curtiss appeals a circuit court order that
granted summary judgment to Bruce Ellery and dismissed Curtiss’s negligence
action for injuries Curtiss suffered on a bus driven by Ellery, and an order denying
reconsideration.1 Curtiss contends that there are disputed issues of material fact as
to whether Ellery was causally negligent, precluding summary judgment. We
agree that there are disputed issues of material fact as to causation and that
summary judgment was improperly granted.2 Accordingly, we reverse and
remand for further proceedings.

¶2 On July 31, 2017, Curtiss filed this negligence action against Ellery.
The complaint alleged that, on August 27, 2016, Curtiss was injured while a
passenger on a bus driven by Ellery. It asserted that Ellery drove negligently over
a bump in the road so that the elderly passengers on the bus were lifted off their
seats. It is undisputed that Curtiss, who was eighty years old and had

1
For ease of reading, this opinion will refer to the appellants, collectively, as “Curtiss,”
and the respondents, collectively, as “Ellery.”
2
Our conclusion that there are disputed material facts as to causation that preclude
summary judgment is dispositive of this appeal. Accordingly, we do not reach other arguments
raised by the parties. Additionally, we do not reach any disputes between the parties that were
not briefed on appeal. That is, this opinion is limited to the narrow, dispositive issue before us:
whether there are sufficient facts as to causation in dispute to render summary judgment
improper.

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No. 2019AP1088

osteoporosis, suffered a spinal fracture when she made impact with her seat after
the bus travelled over the bump.

¶3 Ellery moved for summary judgment. He argued that no facts in the
record would support a jury determination that Ellery’s alleged negligent driving
caused Curtiss’s injuries. More specifically, Ellery argued that Curtiss’s injuries
were the result of her age and pre-existing medical condition. He also argued that,
to establish causation, Curtiss was required to offer expert testimony to show that
Curtiss would not have been injured absent Ellery’s allegedly negligent driving,
and that Curtiss failed to do so.

¶4 Curtiss opposed summary judgment, arguing that there were
disputed issues of material fact as to whether Ellery was causally negligent.
Curtiss cited her experts’ deposition testimony that a safe rate of speed to travel
over the bump would have been somewhere between five and twenty miles per
hour, while Ellery was travelling thirty to thirty-five miles per hour; that Curtiss
would have been lifted less off her seat had Ellery been driving at twenty miles per
hour, resulting in less impact when she landed back on the seat; and that it was
“substantially less likely” that Curtiss would have been injured had Ellery been
driving at a reduced speed of twenty miles per hour. The circuit court granted
summary judgment to Ellery, determining that Curtiss had failed to meet her
burden on the element of causation because she had not offered expert testimony
to establish that she would not have been injured had Ellery been driving at a
reduced speed of twenty miles per hour. Curtiss moved for reconsideration, which
the circuit court denied. Curtiss appeals.

¶5 This court reviews a circuit court order granting summary judgment
de novo, applying the same methodology as the circuit court. See Green Spring

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No. 2019AP1088

Farms v. Kersten, 136 Wis. 2d 304, 314-15, 401 N.W.2d 816 (1987). Summary
judgment is only appropriate when there are no material facts in dispute and the
moving party is entitled to judgment as a matter of law. See WIS. STAT.
§ 802.08(2) (2017-18).3 “In order to be entitled to summary judgment, the moving
party, here the defendants, must prove that no genuine issue exists as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶24, 241 Wis. 2d 804,
623 N.W.2d 751.

¶6 The elements for a negligence action are: (1) the defendant had a
duty of care; (2) the defendant breached that duty; (3) a causal connection between
the conduct and the injury; and (4) damages. Erickson v. Prudential Prop. and
Cas. Ins. Co., 166 Wis. 2d 82, 88, 479 N.W.2d 552 (Ct. App. 1991), abrogated on
other grounds by Gritzner v. Michael R., 2000 WI 68, 235 Wis. 2d 781, 611
N.W.2d 906. For purposes of this appeal, the only disputed element of Curtiss’s
negligence action is causation. “The test of cause ... is whether the defendant’s
negligence was a substantial factor in contributing to the result.” Merco Distrib.
Corp. v. Commercial Police Alarm Co., 84 Wis. 2d 455, 459, 267 N.W.2d 652
(1978). Causation is generally a question of fact. Estate of Cavanaugh v.
Andrade, 202 Wis. 2d 290, 306, 550 N.W.2d 103 (1996).

¶7 Curtiss argues that there are material facts in dispute as to whether
Ellery was causally negligent. Curtiss argues that she presented sufficient
evidence to support a reasonable inference that Ellery’s negligence was a

3
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2019AP1088

substantial factor in causing her spinal fracture. She also argues that she was not
required to prove the negative of what reduced speed would have prevented her
injury to survive summary judgment and allow the issue of causation to go to a
jury. See Ehlinger v. Sipes, 155 Wis. 2d 1, 18, 454 N.W.2d 754 (1990) (“[W]e
refuse to place upon an injured plaintiff the burden of proving what more probably
than not would have happened had the defendant not been negligent.”).

¶8 Ellery responds that the circuit court properly granted summary
judgment to Ellery because, he argues, Curtiss failed to produce sufficient
evidentiary facts to establish that Ellery’s alleged negligence caused Curtiss’s
injuries. See Transportation Ins. Co. v. Hunzinger Constr. Co., 179 Wis. 2d 281,
291-92, 507 N.W.2d 136 (Ct. App. 1993) (to defeat a defendant’s motion for
summary judgment, a plaintiff must introduce evidentiary facts to support each
element of her claim). He argues that there are no facts in the record from which a
jury could find, without speculating, that Ellery’s alleged negligence caused
Curtiss’s injuries. See Cramer v. Theda Clark Mem’l Hosp., 45 Wis. 2d 147,
152, 172 N.W.2d 427 (1969) (explaining that where “situations were so complex
or technical that a jury without the assistance of expert testimony would be
speculating … such testimony was required”). Ellery argues that, to meet that
burden, Curtiss was required to introduce expert testimony that Curtiss would not
have been injured had Ellery driven over the bump at the speed deemed safe by
Curtiss’s expert, and that the lack of such expert testimony entitled Ellery to
summary judgment. See id. (“The lack of expert testimony [when it is required]
constitutes an insufficiency of proof.”). He argues that Ehlinger’s holding that a
plaintiff is not required to prove that an injury would not have occurred absent the
defendant’s negligence is inapposite because Ehlinger was a medical malpractice
case and should be limited to its facts.

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No. 2019AP1088

¶9 We conclude that there are disputed issues of fact as to causation
such that summary judgment was improper. Curtiss provided expert testimony
that Ellery’s reported speed of thirty-one miles per hour exceeded the safe speed
for crossing the bump at a maximum speed of twenty miles per hour. 4 The expert
opined that, had Ellery been traveling at a speed of twenty miles per hour, Curtiss
would have been lifted less out of her seat. That expert was unable to opine, one
way or the other, whether Curtiss would have suffered a spinal injury had Ellery
been driving twenty miles per hour. However, Curtiss provided testimony by
another expert opining that, had Ellery been driving at twenty miles per hour, it
would have been “substantially less likely” that Curtiss would have sustained a
spinal fracture, although he also could not say definitively whether or not it would
have occurred. That expert opined that, at twenty miles per hour, Curtiss would
probably have been lifted off her seat to some degree. The expert also opined that
the lower the speed of the bus as it went over the bump, the less force the
passengers would have experienced.

¶10 We are persuaded that the evidence offered by Curtiss was sufficient
to meet her burden of presenting evidence on the element of causation. See
Hunzinger, 179 Wis. 2d at 290 (“The ultimate burden ... of demonstrating that
there is sufficient evidence ... to go to trial at all (in the case of a motion for
summary judgment) is on the party that has the burden of proof on the issue that is
the object of the motion.”). The test for causation is simply “whether the conduct
at issue was a substantial factor in producing the [plaintiff’s] injury.” Estate of

4
The parties dispute whether Curtiss’s expert opined that a safe speed for going over the
bump was 10-15 or 15-20 miles per hour. Regardless, it is undisputed that Curtiss’s expert
opined that a safe speed was, at most, twenty miles per hour.

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No. 2019AP1088

Cavanaugh, 202 Wis. 2d at 306. Moreover, the question of causation is for the
jury, so long as “reasonable [people] might differ—which will include all but a
few of the cases.” Wills v. Regan, 58 Wis. 2d 328, 340, 206 N.W.2d 398 (1973)
(quoted source omitted). Ellery, as the party moving for summary judgment, bore
the burden to establish that there were no facts in dispute as to causation such that
he was entitled to summary judgment, and Ellery has not met this burden. See
Lambrecht, 241 Wis. 2d 804, ¶24. “The inferences to be drawn from the
underlying facts contained in the [summary judgment] … material should be
viewed in the light most favorable to the party opposing the motion, and doubts as
to the existence of a genuine issue of material fact are resolved against the moving
party.” Id., ¶23 (footnotes omitted).

¶11 We conclude that a reasonable jury could infer from the testimony
by Curtiss’s experts that Ellery’s negligence in driving faster than a safe speed
over the bump was at least “a substantial factor” in causing Curtiss’s spinal
fracture. Accordingly, we conclude that summary judgment was improperly
granted.

By the Court.—Orders reversed and cause remanded for further
proceedings.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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